Posts in category “Weekly Roundup”
Last week, the D.C. Circuit addressed finality and appealability in the military-commission context. The Fourth Circuit reminded everyone that Rule 54(b) partial judgments need to include that rule’s magic words (and an explanation). Plus appeals involving anti-SLAPP denials and challenges to the factual basis of qualified-immunity denials. Let’s start with a new cert petition on state-action antitrust immunity.
Last week saw oral argument in the Supreme Court’s big appellate-jurisdiction case for this term. In other Supreme Court news, the parties finished cert-stage briefing in a case that could get rid of the Fifth Circuit’s finality trap. In the courts of appeals, the Fifth Circuit split on the permissible scope of a certified appeal under § 1292(b). The Sixth Circuit entertained the possibility of appealing sealing orders in criminal cases via the collateral-order doctrine. And the Tenth Circuit addressed its interlocutory jurisdiction over writs of attachment and other orders restricting the use of property.
Last week saw two decisions of note. The Ninth Circuit dismissed a fact-based qualified-immunity appeal, with Judge Fletcher dissenting to argue for the overruling of Johnson v. Jones. And the Third Circuit dismissed an appeal from the denial of a motion to dismiss the original and superseding indictments, even though a victim of the crime served on the grand jury that returned the original indictment.
Last week saw a variety of appellate-jurisdiction decisions. The Second Circuit effectively held that a denied summary-judgment motion does not preserve a purely legal issue for appeal. The Sixth Circuit weighed in on the split over jurisdiction to review hardship determinations in immigration cases. The Tenth Circuit held that a defendant could not appeal a without-prejudice denial of an anti-SLAPP motion. In another case, the Tenth Circuit explained finality in foreclosure actions. The Eleventh Circuit held that an attorney could appeal a sanction order even though the attorney was not named in the notice of appeal. The Sixth Circuit explained that the non-jurisdictional nature of the criminal appeal deadline meant the government can withdraw its objection to a late appeal. And the Seventh Circuit had to determine the finality of an ambiguous judgment.
I took a little break from Final Decisions over the holidays. And that means an extra-large roundup to start the new year—the last two weeks of 2020 produced a plethora of interesting appellate-jurisdiction decisions.
The First Circuit addressed another attempted appeal from the denial of a temporary restraining order in a COVID-related case. In a challenge to regulations implementing the Paycheck Protection Program, the Eleventh Circuit tackled certified appeals and core/non-core proceedings in bankruptcy. Two courts of appeals addressed attempted appeals involving arbitration; the Ninth Circuit held that Microsoft Corp. v. Baker prohibited manufactured finality in the arbitration context, and the Sixth Circuit said that defendants must actually ask for arbitration before they can invoke the special appeal rules in the Federal Arbitration Act. Two courts of appeals held that they lacked jurisdiction to review magistrate judge decisions that were never reviewed by the district court. The D.C. Circuit held that the expiration of the time to amend a complaint did not render a dismissal final. The Eighth Circuit said plaintiffs couldn’t appeal prior district court decisions after a dismissal for failure to prosecute. And the Tenth Circuit extended pendent appellate jurisdiction over part of a municipal appeal.
This is the last weekly roundup of 2020. (I’ll be back after the new year with a post covering the two holiday weeks.) And it involves some pretty technical cases.
Two decisions—one from the Fourth Circuit and another from the Sixth—dealt with the jurisdictional impact of procedural rules. The Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) is jurisdictional. So the court could not excuse the failure to file a second or amended notice of appeal challenging the district court’s decision on a post-judgment motion. The Sixth Circuit said that the filing deadlines for post-judgment motions are not jurisdictional. So the time to appeal can run from the resolution of a late-filed post-judgment motion. And the Fifth Circuit held that a habeas petitioner could not immediately appeal the refusal to lift a protective order. The decision displayed some case-specific reasoning that you occasionally see in collateral-order doctrine cases.
Last week, the Seventh Circuit addressed finality and consolidated complaints in the shaky-cheese multidistrict litigation. The en banc Eleventh Circuit elected to re-examine its law on appealing the state-action antitrust defense. In cert-stage developments, the Supreme Court received a second petition on the scope of § 1447(d) remand appeals and a new petition on the use of mandamus in criminal cases. And the Ninth Circuit issued two opinions of note. One involved jurisdiction in immigration appeals. The other rejected an attempt to challenge the factual basis of a qualified-immunity denial.
Last week saw several courts hold that they lacked jurisdiction over a variety of appeals. Indeed, I found only one case of note in which the court actually had appellate jurisdiction. Still, there are some interesting decisions, including an illustration of the odd “colorable” requirement for double jeopardy appeals. Let’s start with an appeal from two post-judgment orders, one timely and one not.
The holiday week produced two decisions of note. In one, the Eleventh Circuit held that a judgment on the merits of a Fair Labor Standards Act claim is final despite any outstanding issues of attorneys’ fees. And the Third Circuit applied its rule that litigants can immediately appeal Rhines stays in habeas cases.
Last week, a Sixth Circuit concurrence offered a new approach to finality for bankruptcy appeals. The First Circuit added denials of special motions under Maine’s anti-SLAPP law to the list of appealable collateral orders. The Eleventh Circuit told litigants that they have to accept the consequences of waiving the right to amend so that they could appeal. Several courts rejected fact-based qualified-immunity appeals, with the Fifth Circuit supplying an especially helpful primer on the scope of those appeals. And the Fourth Circuit refused to address other defenses alongside a sovereign-immunity appeal.
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